Source: Gazette (Colorado Springs, CO), July 31, 2017
Posted on: http://www.advisen.com
The defendants have moved to dismiss a sweeping lawsuit over chemicals polluting the Widefield Aquifer.
The suit, brought last fall, alleges that chemical giant 3M and other firms that sold firefighting foam to the Air Force should have known that it contained dangerous perfluorinated compounds, now thought to be a health risk. Thousands of water users in Widefield, Fountain and Security were told to stop drinking water from the aquifer last year after testing determined it contained dangerous levels of the compounds.
Attorneys for 3M, in a motion to dismiss the proposed class-action suit, argued that the firm didn’t know the foam was toxic when it was sold to the Air Force. The motion also argues that the Air Force, not 3M, used the foam, and polluted the environment.
“3M’s action is too far removed from the claimed injury for the court to reasonably infer foreseeability,” attorneys for 3M wrote, “or any duty arising therefrom.”
While the Air Force last week admitted that foam releases at Peterson Air Force Base since the 1970s might have allowed the chemical to seep into the aquifer, the military isn’t named in the lawsuit. Suing the military is nearly impossible because of sovereign immunity, a legal doctrine that blocks all but the rarest claims against the government.
With the federal path blocked, lawyers representing plaintiffs in several lawsuits have targeted the chemical manufacturers with claims that the polluted wells stem from the sale of a dangerous product.
The suits have been merged into a single megasuit at federal District Court in Denver. The plaintiffs are also asking that all property owners in the area be recognized as a class, allowing them to head to court as a group rather than requiring them to each sue.
The plaintiffs claim that 3M and other manufacturers ignored warnings about perfluorinated compounds and kept selling the foam to the military, “and continued to do so long after they were aware of the health and environmental risks of their products.”
The defendants say they didn’t know the foam was harmful at the time it was made.
In arguments against 3M’s motion for dismissal, the plaintiffs claim that 3M stopped making the firefighting foam in 2002 due to toxicity concerns, but never recalled the product or warned users of the hazards the foam posed.
Last year, the EPA issued a warning about perfluorinated compounds in drinking water. In the advisory, the agency said concentrations above 70 parts per trillion could pose health risks, which range from cancer to high cholesterol to low birth weight, a leading cause of infant morality.
A report released by the Air Force last week showed that the chemical was detected at 88,000 parts per trillion near the fire training area at Peterson Air Force Base, that’s 1,257 times higher than the EPA’s advisory level.
Any resolution to the lawsuit could be a long way off.
No timeline has been set for arguments on the motion to dismiss the case.
Some studies that both sides could need to determine liability haven’t begun.
The Air Force claims that studies tying the aquifer’s pollution to firefighting foam are incomplete and may not be finished until late 2018.
The court in Denver this month waived filing deadlines in the lawsuit, slowing its progress ahead of a proposed late August hearing to set a schedule for the case.